Workplace Safety

In light of the rapidly evolving coronavirus challenge, AF&PA has compiled information and resources related to the COVID-19 pandemic, including on issues such as workplace safety, scientific studies, economic relief programs, general information, environmental compliance flexibility, shelter-in-place orders and critical business exemptions. Much of the information has been compiled from third-party sources, and none of the information is, nor should it in any way be construed as, legal, health or any other form of advice, nor can we attest to the reliability, accuracy or completeness of the information. We hope this is helpful as a basic general information resource. This website is subject to change as new information comes to our attention.

Resources from the Occupational Safety and Health Administration, Centers for Disease Control and Prevention (CDC) and U.S. Equal Employment Opportunity Commission providing guidance on protecting workers from exposure and preparing workplaces to minimize risks, among other things.

CDC Mitigation Strategies for Communities with Local COVID-19 Transmission, “What workplaces can do to prepare for COVID-19, if the workplace has cases of COVID-19, or if the community is experiencing spread of COVID-19)”:

Equal Employment Opportunity Commission (EEOC) Guidance: The EEOC issued guidance to clarify that employee temperature testing for COVID-19 at operating work sites at this time would not constitute a “medical examination” prohibited by the Americans With Disabilities Act (ADA). This guidance is responsive to a request AF&PA made to the Administration following up on member concerns. The guidance also addresses other workplace safety issues pertinent to facilities operating during the COVID-19 pandemic, such as how much information an employer may request from an employee who calls in sick, and whether an employer can require a sick employee to go home, require a doctor’s note to certify that an employee is fit to return to work, and screen job applicants for COVID-19. You can access the new EEOC guidance here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

EEOC Answer:
The ADA requires that any mandatory medical test of employees be "job related and consistent with business necessity." Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.